Columns » Ernest Dumas

Ignoring the founders



Before Senate Majority Leader Mitch McConnell chose to deny President Obama his duty to appoint a Supreme Court justice, he might have asked himself the WWTFD question: What would The Founders do?

If he were still around, Justice Antonin Scalia, whose seat they are filling, might also have enlightened his party on what the original intent of the Constitution's appointment and advise-and-consent mandate was, since originalism was Scalia's claim to fame. The intent was not to consult with the voters before choosing a judge, as McConnell and most of the senators claim they are doing by ignoring the president's appointment of Appeals Court Judge Merrick Garland. They say voters should have a voice in choosing the next justice by voting for a president and senators this fall.

Turning the matter of choosing a Supreme Court justice over to the voters, needless to say, is not really their object, nor is to preserve the court's conservative balance on big social issues like abortion and homosexuality. Garland's replacing Scalia would not change that balance. The court has ruled against the conservatives on those issues for many years, thanks to a string of Republican justices like Blackmun, Burger, Powell, Stewart, O'Connor, Stevens, Souter and Kennedy. Rather, their sole purpose is to deny any legacy to the country's first African-American president. McConnell placed thwarting Obama over governing as the Senate's primary function in his famous dictum after the 2010 election.

Every Supreme Court nominee for 140 years has received a hearing or a vote. Since 1900, six justices have been confirmed in presidential election years. But since the Republicans insist that there first be a plebiscite on the Supreme Court, that idea, silly as it is, should be accorded some analysis.

We happen to know what the founders meant when they prescribed that justices be chosen not by election, but by the president alone with the consent of the Senate. The remarkable Federalist Papers explained the rationale for the strong federal government that the new constitution established and for the Constitution's component parts. Nothing is better elucidated than the role of the judiciary and how and for how long Supreme Court justices and other judges were to be chosen: lifetimes. Alexander Hamilton did most of the analysis in six essays in which he explainedwhy the president alone, not Congress or another body, should do it, notwithstanding the chance that the president could go astray by naming a crony or a family member. The Senate would be a check on the appointment of "an unfit character." It could reject the appointment and force the president to name another. Hamilton's essays were directed at the anti-federalist criticism of lifetime appointments instead of popular elections for judges.

The Constitution's framers deemed presidential appointments and Senate concurrence the best way to maintain a Supreme Court that was independent — that is, above political frays and immune to the transitory passions of the people. To remove the court even further from the passing whims of voters, the founders picked the Senate, elected every six years and not every two years like the House and then chosen by state legislatures and not by voters, to be a check on the president's appointment of justices. The executive and the House were answerable to people at elections, but the Supreme Court should stand above politics. Although people may be chagrined by rulings, there must always be confidence that the court is acting upon the Constitution and interpreting statutes and executive actions fearlessly without regard to politics or what is popular. The republic depended upon that confidence.

"Considerate men of every description," Hamilton wrote, "ought to prize whatever will tend to beget or fortify that temper in the courts: as no man can be sure that he may not be to-morrow the victim of a spirit of injustice, by which he may be a gainer to-day. And every man must now feel, that the inevitable tendency of such a spirit is to sap the foundations of public and private confidence, and to introduce in its stead universal distrust and distress."

We have now reached Hamilton's feared state of "universal distrust and distress." That's what Chief Justice John Roberts was saying a few days before Scalia's death when he deplored the political posturing of the Senate on the president's judicial appointments.

Scalia had deplored it, too. Although his views of the Constitution were widely known — that the country is forever bound by the ignorance and prejudices of the men of 1788 — the Senate confirmed him 98-0. Scalia remarked that he couldn't get 60 votes today. Had the Senate in 1986 followed McConnell's theory of waiting on the judgment of the voters in an election only two months away, it would have scorned Scalia. Democrats won the Senate elections in a landslide.

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